GAO-11-432 Indian Arts and Crafts: Size of Market and ...

GAO

April 2011

United States Government Accountability Office

Report to the Committee on Natural Resources, House of Representatives

INDIAN ARTS AND CRAFTS

Size of Market and Extent of Misrepresentation Are Unknown

GAO-11-432

Accountability ? Integrity ? Reliability

Highlights of GAO-11-432, a report to the Committee on Natural Resources, House of Representatives

April 2011

INDIAN ARTS AND CRAFTS

Size of Market and Extent of Misrepresentation Are Unknown

Why GAO Did This Study

In 1935 the Indian Arts and Crafts Act was enacted, establishing the Indian Arts and Crafts Board as an entity within the Department of the Interior. A priority of the Board is to implement and enforce the act's provisions to prevent misrepresentation of unauthentic goods as genuine Indian arts and crafts. As the market for Indian arts and crafts grew and the problem of misrepresentation persisted, the act was amended to, among other things, enhance the penalty provisions and strengthen enforcement.

GAO was asked to examine (1) what information exists regarding the size of the market and the extent to which items are misrepresented and (2) actions that have been taken to curtail the misrepresentation of Indian arts and crafts and what challenges, if any, exist. In addition, this report provides information on some options available to protect Indian traditional knowledge and cultural expressions. GAO analyzed documents and interviewed international, federal, state, and local officials about the arts and crafts market and enforcement of the act.

GAO is making no recommendations in this report. In commenting on a draft of this report, the Departments of Commerce and Homeland Security generally agreed with the contents of the report. The Departments of Commerce, Homeland Security, the Interior, and Justice also provided technical comments which were incorporated into the report as appropriate.

View GAO-11-432 or key components. For more information, contact Anu K. Mittal at (202) 512-3841 or mittala@.

What GAO Found

The size of the Indian arts and crafts market and extent of misrepresentation are unknown because existing estimates are outdated, limited in scope, or anecdotal. Also, there are no national data sources containing the information necessary to make reliable estimates. For example, the most often cited national estimates about the size of the market and the extent of misrepresentation come from a 1985 Department of Commerce study. GAO found that not only is this study outdated, but the estimates included in the study are unreliable because they were based on anecdotal information and not systematically collected data. No national database specifically tracks Indian arts and crafts sales or misrepresentation, and GAO found that no other national databases contain information specific or comprehensive enough to be used for developing reliable estimates. Moreover, GAO determined that to conduct a study that could accurately estimate the size of the Indian arts and crafts market and the extent of misrepresentation would be a complex and costly undertaking and may not produce reliable estimates.

Federal and state agencies have relied largely on educational efforts rather than law enforcement actions to curtail misrepresentation of Indian arts and crafts, but these efforts are hampered by a number of challenges, including ignorance of the law and competing law enforcement priorities. From fiscal year 2006 to fiscal year 2010, the Indian Arts and Crafts Board received 649 complaints of alleged violations of the Indian Arts and Crafts Act. The Board determined that 150 of these complaints, or 23 percent, involved an apparent violation of the law, and it referred 117 of the complaints for further investigation by law enforcement officers, but no cases were filed in federal court as a result. According to the Board and law enforcement officials, support from law enforcement personnel and others to prosecute these cases has been sporadic because of higher law enforcement priorities. Therefore, the Board has relied primarily on educational efforts to curtail misrepresentation. For example, in response to complaints, the Board sent educational and warning letters to about 45 percent of alleged violators, and it produced educational brochures and participated in other educational efforts for artists, sellers, consumers, and law enforcement officers. GAO identified one arts organization that has successfully used civil actions to curtail misrepresentation, but this approach can be costly and time-consuming.

U.S. federal and state laws protecting intellectual property do not explicitly include Indian traditional knowledge and cultural expressions--such as ceremonial dances or processes for weaving baskets--and therefore provide little legal protection for them. Some international frameworks offer protection for traditional knowledge and cultural expressions, but the federal government has not yet undertaken steps to implement these frameworks in the United States. Other countries, like Panama and New Zealand, have taken actions--which offer options for consideration--to protect the intellectual property of indigenous groups.

United States Government Accountability Office

Contents

Letter

Appendix I Appendix II Appendix III Appendix IV Appendix V Tables

1

Background

5

The Size of the Indian Arts and Crafts Market and the Extent of

Misrepresentation Are Unknown

9

To Curtail Misrepresentation of Indian Arts and Crafts, Agencies

Have Relied on Educational Efforts over Law Enforcement

Actions, but Fundamental Challenges Exist

13

Some Potential Options for Protecting Indian Traditional

Knowledge and Cultural Expression Exist

23

Agency Comments

31

Misrepresentation Complaints Received by the

Indian Arts and Crafts Board

32

Criminal Cases Brought under the Indian Arts and

Crafts Act and Their Dispositions, Fiscal Years

1990 through 2010

36

Comments from the Department of Commerce

37

Comments from the Department of

Homeland Security

38

GAO Contact and Staff Acknowledgments

40

Table 1: Number of Complaints by Sales Venue, Fiscal Years 2006

to 2010

32

Table 2: Number of Complaints by Art or Craft Type, Fiscal Years

2006 to 2010

33

Table 3: Number of Complaints by Region, Fiscal Years 2006 to

2010

34

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GAO-11-432 Misrepresentation of Indian Arts and Crafts

Table 4: Number of Complaints by State for States with Indian Arts

and Crafts Laws, Fiscal Years 2006 to 2010

35

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GAO-11-432 Misrepresentation of Indian Arts and Crafts

United States Government Accountability Office Washington, DC 20548

April 28, 2011

The Honorable Doc Hastings Chairman The Honorable Edward J. Markey Ranking Member Committee on Natural Resources House of Representatives

The sale of goods falsely represented as authentic Indian-produced arts and crafts has been a persistent and potentially growing problem in the United States. At least 1.9 million members of federally recognized Indian tribes live in the United States, some of whom are artisans who create pottery, baskets, rugs, and other types of arts and crafts for sale to wholesalers, retailers, or the public directly at Indian art shows and markets. Misrepresentation by sale of unauthentic products created by non-Indians, including imports from foreign countries, is a matter of great concern to Indian artisans, who may have to reduce their prices or lose sales because of competition from lower-priced imitation products. This could have a potentially significant negative economic effect on the Indian arts and crafts market and, consequently, on the individuals and tribes who rely on this market for income.

Furthermore, Indian artisans have voiced concerns that the traditional knowledge of how to create these goods--often passed down from generation to generation within the tribes--will not be carried forward by younger generations if they cannot make a living producing these goods. Likewise, consumers may suffer from misrepresentation if they are fraudulently led to believe that imitation products they purchase are authentic and, upon discovery, may cause them to question the authenticity of genuine goods, further damaging the Indian arts and crafts market at large. These concerns also extend beyond tangible arts and crafts to include other types of traditional knowledge and cultural expression, such as song, dance, and writings, which can be misappropriated by outsiders and used for profit.

To address misrepresentation of arts and crafts, the Indian Arts and Crafts Act was enacted in 1935, establishing the Indian Arts and Crafts Board

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GAO-11-432 Misrepresentation of Indian Arts and Crafts

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